Spam Law Found Unconstitutional; Washington State AG Considers Appeal

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The Washington state attorney general's office is considering appealing the ruling earlier this month that determined the state's anti-spam law is unconstitutional.

"I think this is a common sense test," said Washington's assistant attorney general Regina Cullen.

Superior Judge Palmer Robinson, who made the ruling, noted that under the law businesses would have to determine whether the e-mail recipients were located in Washington state in order to determine whether the statute applied, and therefore violates the interstate commerce clause of the U.S. Constitution.

Meanwhile, Marc Roth, an attorney at law firm Brown, Raysman, Millstein, Felder and contributor to iMarketing News, questions whether states can regulate unsolicited commercial e-mail practices at all.

"In the absence of a federal law for spam, states have sought to prohibit this type of practice in their states," he said "Superior Judge Palmer Robinson also noted that the requirement that an alleged spammer know where his recipient is on the Internet is not always knowable."

Washington's law bans commercial e-mail with misleading information in the subject line, an invalid reply address, or a disguised path of transmission. When violated, individuals, Internet service providers, and the state attorney general's office can sue for actual damages or $500 to $1,000 per e-mail.

The Washington state attorney general's office filed the lawsuit in October 1998 after receiving 17 complaints against Jason Heckel, Salem, OR, who allegedly sent between 100,000 and 1 million e-mail solicitations per week with a false return address. The e-mails' headers asked "Did I get the right e-mail address?" and the message offered a $39.95 package dubbed "How to Profit From the Internet."

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